With this background in mind, we turn to the task of construing
§§ 1399 and 1401. Section 1399(c)(2) provides:

(2) Withdrawal liability shall be payable in accordance with
the schedule set forth by the plan sponsor under subsection
(b)(1) of this section being no later than 60 days after the
date of the demand notwithstanding any request for review or
appeal of determinations of the amount of such liability or of
the schedule.

Section 1401(d) provides:

(d) Payments by employer prior and subsequent to determination
by arbitrator; adjustment; failure of employer to make
payments

Payments shall be made by an employer in accordance with the
determinations made under this part until the arbitrator issues
a final decision with respect to the determination submitted
for arbitration, with any necessary adjustments in subsequent
payments for overpayments or underpayments arising out of the
decision of the arbitrator with respect to the determination.
If the employer fails to make timely payment in accordance with
such final decision, the employer shall be treated as being
delinquent in the making of a contribution required under the
plan (within the meaning of section 1145 of this title).
(emphasis added).

The application of either subsection clearly depends on whether
arbitration has been requested: If arbitration has not been
requested, then § 1401(b)(1) applies: If arbitration has been
requested, then § 1401(d) applies. Thus, as we read them, the
subsections are not inconsistent because each applies under
different circumstances.*fn3 Moreover, it would be anomalous
for a Congress so concerned with the continued vitality of
multiemployer plans to intend the result suggested by Southland
(viz. the suspension of payments by withdrawing employers who
have initiated arbitration). This court's reading of § 1401 is
consistent with the congressional policy behind MPPAA and the
interim regulations promulgated by the PBGC. See
29 C.F.R. § 2644.2(c)(2). As previously mentioned, the MPPAA provides an
employer with significant incentives to honor its contractual
obligations to a pension fund. This Court declines to disturb
the rational decisions made by Congress to protect the security
of pension plans. Board of Trustees v. Ceazan, 559 F. Supp. 1210
(N.D.Cal. 1983); Retirement Fund v. Lazar-Wisotzky,
550 F. Supp. 35, 36 (S.D.N.Y. 1982) aff'd 738 F.2d 419 (2d Cir.
1984).

Southland further argues that the Plan is required to exhaust
its administrative or arbital remedies under MPAA before
proceeding under §§ 1401 and 1451 for payments pending
arbitration. This argument is without merit. If the application
of the exhaustion doctrine suggested by Southland is accepted,
then the requirements for payment pending arbitration contained
in § 1401(d) are rendered inoperative. Congress is unlikely to
have intended such a result.

Further, in seeking to compel Southland to make interim
payments, the Plan is not attempting to make an end run around
the arbitration procedures provided by § 1401(a). The Plan
seeks construction and enforcement of a separate statutory
right provided by §§ 1399(c)(2) and 1401(d). Therefore, because
we read these sections as clearly requiring interim payments by
a withdrawing employer pending an arbitrator's decision, there
can be no exhaustion issue in this case. See I.A.M. National
Pension Fund v. Stockton Tri Industries, 727 F.2d 1204,
1209-11 (D.C.Cir. 1984).

The constitutional arguments raised by Southland are not
persuasive. The MPPAA has survived attack under the due process
clause and the seventh amendment. E.g., Republic supra, at
642; Peick, supra, at 1277. See also Ceazan, supra, at
1216-18; Lazar-Witsotzky, supra. at 37. The motion to dismiss
is therefore denied.

IT IS SO ORDERED.

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